Eamonn Francis Leddin v The Queen (2014) H&FLR 2014-42

Victorian Court of Appeal

22 July 2014

Coram: Weinberg, Whelan and Beach JJA

Appearing for the Appellant: Mr J McLoughlin (instructed by Victoria Legal Aid)
Appearing for the Respondent: Ms F L Dalziel (instructed by the Office of Public Prosecutions)

Catchwords: Victoria – cyclist – death – culpable driving – daydreaming – sentencing – manifestly excessive

Facts: On 7 April 2011 at about 11:00am the applicant (then aged 19), driving a car, struck a cyclist. The road on which both were travelling was straight with a 100kph (≈ 60mph) speed limit. The weather was fine and visibility good. Roughly half a kilometer before the accident scene was a sign warning of the presence of cyclists. The deceased was an experienced 47 year old cyclist wearing a high-visibility top.  The defendant’s evidence was that while he had seen the sign warning of cyclists and also the cyclist herself, after doing so he had lost concentration and begun to daydream. There was no evidence that he was drugged or intoxicated, distracted by a mobile phone or speeding. There was no clear evidence that he had fallen asleep or been over-tired.

Significant delay by the prosecution resulted in the defendant not being charged with culpable driving causing death (Crimes Act 1958, §318) until January 2013. On 4 December 2013 he pleaded guilty to this charge and was sentenced to 4 years and 3 months imprisonment, to serve a minimum of 2 years and 3 months: Director of Public Prosecutions v Leddin (County Court of Victoria, Judge Taft, 19 December 2013, unreported). The defendant appealed on the basis that the sentence and non-parole period were manifestly excessive

Held: Dismissing the appeal, that –

1. Serious driving offences tend to be committed by young drivers. Because of this, an offender’s youth must be given less weight than might otherwise be the case in considering sentence in these matters

Director of Public Prosecutions v Neethling (2009) 22 VR 466, approved.

2. The maximum penalty for the charged offence is 20 years’ imprisonment. A case would need to be ‘truly exceptional’ for a sentence of 4 years and 3 months to be manifestly excessive. The delay in the prosecution and the absence of speeding, intoxication and disobeying traffic signals did potentially render the matter unusual. On the other hand, there was genuine culpability in the defendant’s failure to avoid a collision with a cyclist despite having seen both her and a warning sign concerning cyclists generally.

Director of Public Prosecutions v Neethling (2009) 22 VR 466; Director of Public Prosecutions v Hill (2012) 223 A Crim R 285; and R v Sherpa (2001) 34 MVR 345, considered.

Judgment

The Court’s judgment is available here.